Owosho V. Dada (1984)

ANIAGOLU, J.S.C.

This is an appeal brought by one of the land owning families of Lagos, namely, the Bashua Family, in a case in which the respondent, Michael Adebowale Dada, took out an action in the Ikeja Judicial Division of the High Court of Lagos claiming for

“An order to set aside and declare null and void the purported deed of conveyance between Chief Sanusi A Bashua, S. A Eshubi, N.A. Kekere-Ekun Abu Amore, M. Adisa Bashua, R.A. Adewale (for themselves and on behalf of the Bashua Chieftaincy family of Lagos) and T. Lawal Owosho made the 16th day of March 1973 and registered as No. 69 at page 69 in volume 1433 of the Register of Deeds kept at the Lands Registry Lagos in respect of a landed property situate, lying and known as No. 13, Obiwunmi Street, Bashua Village, Shomolu in the Ikeja Division of Lagos State of Nigeria on the ground that it was made executed and obtained fraudulently and/or in an attempt to defeat the end of justice.”

Pleadings were ordered and filed. Perhaps the plaintiff’s grievance leading to the action will be brought out more clearly by reproducing his statement of claim as follows:

“Statement of Claim

1. The plaintiff is a Nigerian residing at No.5, Folami Street, Shomolu and carries on business as an estate agent and building contractor.
2. The 1st, 2nd, 3rd, 4th, 5th and 6th defendants are the accredited representatives of Bashua Chieftaincy family and are sued for and on behalf of themselves and other members of Bashua Chieftaincy family.
3. The 7th defendant is a trader and lives at No. 12, Obiwunmi Street, Bashua Village, Shomolu.
4. The defendant family is the owner under native customary law of the vast area of landed properties at Bashua Village, Shomolu which were sold/or leased to buyers and/or leased as building plots in accordance with an Approved Elias Layout in respect of the same vast area of landed property.
5. The plaintiff, for about 5 years since 1966 acted as estate agent and building contractor for the defendant family in respect of the vast area of landed property at Bashua Village Shomolu.
6. Through the plaintiff as estate agent and building contractor the defendant sold several building plots to clients including Mr. Olayinka of 48, Freeman Street, Ebute-Metta, Alhaji Sanni of Reclamation Road, Lagos, Mr. Lawal Owosho of Nos. 10 and 12 Obiwunmi Street, Bashua Village, Shomolu, Mr. Ogunshola of No.1, Opere Street, Bashua Village, Shomolu.
7. The landed property on which the plaintiff built his house at No.5, Folami Street, Shomolu was formerly leased to the plaintiff by the defendant family in 1966 at a price of 150 pounds but receipt was issued for only 80 pounds according to their usual practice, the balance being regarded as money for “Ijoko Agba”.
8. The 1st, 2nd, 3rd, 4th, 5th and 6th defendants are the accredited representatives of Bashua Chieftaincy family and are the Signatories to the deed of conveyance dated 26th day of June, 1971 and registered as No.13 at page 13 in Volume 1361 in the Register of Deeds kept in the office at Lagos relating to the landed property at No.5, Folami Street, Shomolu.
9. Sometime in May, 1970 the defendant family agreed to lease and did lease to the plaintiff a piece of landed property at No. 13, Obiwunmi Street; Bashua Village, Shomolu for a period of ninety-nine (99) years on payment of a premium rent of 260 pounds (Five Hundred and Twenty Naira) but receipt was later issued for only 60 pounds on the 19th day of June, 1970 and on an annual rent of 5 pounds (now N10).
10. Chief Sanusi Bashua the 1st defendant with some members of the Bashua Chieftaincy family including the 2nd defendant accompanied the plaintiff to the site at 13 Obiwunmi Street, Shomolu otherwise known as Plot 13 in Elias Approved Layout and put him into possession.
11. The defendant family agreed to execute a deed of lease in respect of the property in question whenever same is prepared by the plaintiff and submitted for the defendant family for signature.

12.The defendant family also agreed to allow the plaintiff to exercise an option to purchase the freehold right in the land in dispute on payment of a sum of 500 pounds (now N1,000) but would, as usual, issue receipt for 230 pounds (now N460).

13. The plaintiff immediately went into possession of the said land and caused a survey plan No. GFO/571B of the said land to be prepared by licensed surveyor G.F.O. Okusanya and duly countersigned by the Surveyor-General, Western State of Nigeria on the 22nd day of December, 1970.
14. The plaintiff put up a wall fence on the land in 1970 and erected two stores thereon which were hired out on monthly rental basis to tenants, Mr. Olatunji Otubusin the manager of OWOTABUA POOL HOUSE, Messrs, Nigerian Assessors and Investigators Company Limited of 58, Ojuelegba Road, Surulere who were on the land as tenants of the plaintiff.
15. The plaintiff later caused a building plan No. M/BB/A 1406 relating to the landed property in question to be submitted on the 18th day of October 1972 to the Ikeja Town Planning Authority (now Lagos State Development Property Corporation) for approval.
16. The plaintiff avers that he offered a sum of N1,000 to the defendant family for freehold purchase of the land in dispute but the defendant family refused.
17. The plaintiff sent to the defendant family by registered letter the annual rent of N10 due in respect of the lease for 1971 but the defendant family returned same.
18. The plaintiff avers that in November 1972, he took out a writ of summons in suit No.LD/1321/72, against the 1st, 2nd, 3rd, 4th, 5th and 6th defendants for specific performance to execute a deed of lease in respect of the property known as No. 13, Obiwunmi Street, Bashua Village, Shomolu.

19.The writ of summons in the said Suit No. LD/1321/72 was struck out on the 11th of December, 1972 for failure of the plaintiff to get to the court in time due to transport go-slow.

20. The plaintiff immediately filed another writ of summons in Suit No.LD/1469/72 against the said Bashua Chieftaincy family for specific performance to execute a deed of lease in respect of the landed property at No.13, Obiwunmi Street, Lagos.
21. Pleadings have been completed in the said Suit No.LD/1469/72 and the matter is ripe for hearing.
22. The plaintiff avers that the 7th defendant has been his friend for the past four years and knows the plaintiff to be the owner and landlord of the house and landed property at 13, Obiwunmi Street, Shomolu which is the property in dispute.
23. The defendant family sometime in or about the 16th day of March 1973 purported to execute in favour of the 7th defendant a deed of conveyance registered as No. 69 at page 69 in Volume 1433 of the Lands Registry in the office at Lagos relating to the property in question.
24. The plaintiff intended to commence building on the land in dispute sometime in July, 1973.
25. The plaintiff avers that when he pressed for his building plan to be approved he received a letter from the Ikeja Town Planning Authority to the effect that he should first of all demolish his existing structures and shops on the land.
26. The plaintiff avers that his shop on the land in dispute was demolished by the Ikeja Town Planning Authority on the 10th of July, 1973 leaving the board-off for the purpose of keeping his building materials therein.
27. Late in the evening of the 10th of July, 1973 the 1st and the 7th defendants and some other people brought thugs to the land in dispute and demolished the board-off structure for the building materials, removed 100 bags of cement and other building materials from the store, pulled down the wall fence and chased the plaintiff away with cutlass.
28. The matter was on the 11th of July, 1973 immediately reported to the police who are still investigating the matter.
29. The plaintiff at the trial will contend amongst other things that the 1st, 2nd, 3rd, 4th, 5th and 6th defendants executed the purported deed of conveyance in favour of the 7th defendant dated 16th March, 1973 and registered as No. 69 at page 69 in Volume 1433 at the Lands Registry, Lagos fraudulently and with a view to defeat the end of justice in that:

(1) The Bashua Chieftaincy family know that they were under an obligation to execute a deed of lease or conveyance in his favour and legal action has been taken against them accordingly.

(2) The 7th defendant was well aware of the plaintiff’s interest in the land in question.

Wherefore the plaintiff claims as per his writ of summons.

Dated at Lagos this 29th day of January 1974.”

1st to 6th defendants, who were members of the Bashua family, filed one statement of defence while the 7th defendant, who was the grantee of the Bashua family i.e. the grantee of 1st to 6th defendants, filed a different statement of defence. The statement of defence of 1st to 6th defendants reads:

“Statement of Defence of 1st – 6th Defendants

SAVE and except as is hereinafter expressly admitted, the defendants deny each and every allegation of facts contained in the plaintiffs (sic) statement of claim as if each were set down and specifically denied.

1. That 1st to 6th defendants admits (sic) paragraphs 1 and 4 but denies (sic) paragraphs 2, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 24, 25, 26, 27, 28 and 29 of the plaintiff’s (sic) statement of claim, and put him to the strict prove (sic) of the various allegations of facts contained 5 therein.
2. The 1st to 6th defendants at no time agreed to lease any land to the plaintiff, nor was there any agreement of terms of any leasehold reached with the plaintiff.
3. The defendants avers that they sold and conveyed a piece of land to the 7th defendant who was put unto (sic) possession and have (sic) since remained thereon. The land was vacant at the time and was in possession of the 1st to 6th defendants (sic) family until it was sold.
4. The 1st to 6th defendants aver that, there was no fraud involved in the execution of the said deed of conveyance to the 7th defendant.
5. The defendant will contend at the trial that the plaintiffs (sic) claim is misconceived, an abuse of the process of court and should be dismissed.”

The 7th defendant had not much to say in his statement of defence save that the Bashua family made a grant of the land in dispute to him. This was what he wrote: